E. Negotiations for Appointment of Neutral Arbitrator and Hearing Date. According to the Service Agreement, a neutral arbitrator is to be chosen by the two-party arbitrators within thirty days of their selection, and the hearing is to be held "within a reasonable time thereafter." Thus, pursuant to the time frame mandated by Kaiser, the neutral arbitrator must be selected within 60 days after initial service of the claim. There is no dispute that timely appointment of a neutral arbitrator is critical to the progress of the case, inter alia, because the Code of Civil Procedure provides a right to discovery only "after the appointment of the arbitrator or arbitrators ...." (@ 1283.05, subd. (a).) n5 In fact, in this case, Mr. McComas asserted that discovery could not commence until the neutral arbitrator was selected, because the neutral arbitrator would have to approve any discovery. Similarly, a hearing date cannot be set until the neutral arbitrator is appointed. (@ 1282.2, subd. (a).) In this case, Mr. McComas refused to discuss disclosure of expert witnesses until the hearing date was set. In short, the timely appointment of a neutral arbitrator is the linchpin of all progress in a Kaiser arbitration. Without a neutral arbitrator in place, and absent a stipulation, nothing can be accomplished. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 All further statutory references are to the Code of Civil Procedure unless otherwise indicated. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Although the arbitration provision specifies that the two-party arbitrators "shall" select a neutral arbitrator, in reality, the selection is made by defense counsel after consultation with the Kaiser medical-legal department. >? Why should P accept this? >? Why not immediately sue for Breach of K? Kaiser has never relinquished control over this selection decision. Indeed, in this case, Mr. McComas instructed Mr. Ney on who should be proposed and who was unacceptable. Thus, the timeliness of appointment of a neutral arbitrator depends upon cooperation and agreement by Kaiser and its counsel, as well as that of the claimants and their attorneys. In the initial claim of May 31, 1991, Mr. Rand requested the immediate commencement of the process for selection of arbitrators. During the next few months, Mr. Rand wrote more than a dozen letters to arbitrators and Mr. McComas asking that the selections be made. >? Why wasn't this BoK? >? Why wasn't this Bad Faith? Only two weeks after serving his demand letter, Mr. Rand stated that he intended "to encourage both designated arbitrators to identify the third arbitrator at the earliest possible date." On July 8, Mr. Rand suggested an agreement on the date for designation of experts, preferably in August, "and that we anticipate having the arbitration soon thereafter." On July 18, Mr. Rand again wrote to Mr. McComas on the subject of scheduling the arbitration hearing, noting that he would be prepared to proceed by early September. On July 23, Mr. Rand wrote to both party arbitrators and Mr. McComas, again stressing the terminal condition of the plaintiff, his desire to hold the arbitration hearing in early September, and the urgent need to select the third, neutral arbitrator. Mr. Rand again wrote to the two-party arbitrators on August 9, and again urged them to "select the third arbitrator as soon as possible." The Engallas' designated arbitrator, Peter Molligan, also attempted to push the defense into motion. On August 12, after trying at least three times to get Mr. Ney on the phone, Mr. Molligan finally wrote Mr. Ney about selecting the neutral arbitrator in order to "get this case moving." A few days later, having still heard nothing, Mr. Rand tried again, saying: "Time is of the absolute essence and I again ask that you use all possible means to quickly select the third arbitrator. I am becoming increasingly concerned about the delays and am beginning to wonder whether the arbitration proceedings are suitable for this case." >? Why wasn't all this Bad Faith? During the week following August 15, 1991, the two-party arbitrators exchanged six names. Mr. Rand also continued to press the issue of the unavailability of party arbitrator Ney, which he had just learned about, and repeated his request that the parties move toward a schedule that would allow the arbitration proceedings to begin in September. On August 30, having still heard nothing about the third arbitrator, Mr. Rand wrote to Judicial Arbitration and Mediation Services (JAMS) Judge Daniel Weinstein requesting proposals for judges who could be available for a hearing date "within the next several weeks." On September 3, Mr. Ney wrote to Mr. Molligan, rejecting as unacceptable Judge Francis Mayer, one of the "neutrals" Mr. Molligan had suggested. Apparently, this veto was exercised pursuant to Mr. McComas's instructions. Mr. Ney expressed doubts about the availability of Mr. Molligan's other two choices--retired judges Fannin or Weinstein, although he had not checked with either judge--and pressed instead for one of his own choices. On September 5, while Mr. Molligan was out of town, Mr. Rand agreed to one of the suggestions, Judge Robert Cooney, on the condition that "he can be available to commence this matter this month." If he was not available, Mr. Rand suggested two JAMS judges (Donald Constine and John Racanelli) he knew to be available in September. Mr. Rand wrote to Mr. McComas again on September 18 and 25, literally begging for responses to his many suggestions for expediting the arbitration process. Despite this additional prompting, Mr. McComas did not respond for almost three weeks and, when he finally wrote to Mr. Rand on September 24, he expressed uncertainty as to whether Judge Cooney had been agreed upon. Mr. Rand immediately responded on September 26 that Judge Cooney had been accepted and that he was only waiting for confirmation that the judge would be available "in the very near future." Apparently, because Kaiser holds itself out as the program administrator, collects and disburses arbitrator fees and had, in fact, proposed Judge Cooney, Mr. Rand assumed Kaiser would handle the formal retention of Judge Cooney and pay a deposit on his fees. Kaiser takes the position that it is the claimant's burden to move the case along, including making arrangements with the neutral arbitrator. >? Adding contractual duties? After almost two more weeks, Mr. McComas wrote again on October 7, this time claiming that "[t]o this date, neither you nor your clients have agreed to the appointment of a neutral arbitrator" because "[y]ou apparently agreed to Judge Cooney with an unrealistic condition." n6 Mr. Rand responded on October 16, stating, "I am incredulous that you are still asking that we agree to the appointment of the neutral arbitrator. We have repeatedly informed you that we will agree to your suggestion of Judge Cooney. Why do you continue to insist that we have not agreed? My only reservation was and still is a question concerning availability." On October 18, Mr. Rand again wrote that he was "still waiting to hear from you concerning the final retention of Judge Cooney. I had promised him that he would be hearing from you when I advised him that we had agreed to his appointment." - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 Respondents claim that Mr. McComas dissembled on September 24 and October 7 when he expressed uncertainty about Judge Cooney's availability and the plaintiffs' agreement to appointment of the retired judge. They argue that, by that time, Mr. McComas had not even contacted Judge Cooney to determine his availability, and that, in fact, Judge Cooney was available during September and October to preside over the hearing. They conclude that, by initially feigning uncertainty about whether the Engallas had agreed to Judge Cooney's appointment, Mr. McComas managed to delay the appointment for over six weeks. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Finally, on October 22, Mr. McComas wrote to say that he understood the Engallas had agreed to retain Judge Cooney as the neutral arbitrator, conditioned upon his availability, and that he had, therefore, instructed Mr. Ney to complete the retainer. By this time, 144 days--almost 3 months more than represented in the Service Agreement--had elapsed since the initial service of the claim. Mr. Engalla died the next day. >? Egregious Bad Faith